Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment

Judgment:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 0
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 1
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 2
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 3
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Mr.Sanjay Mathur for the respondent no.2.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 4
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Mr.A.K.Rajvanshy for the respondent no.3-Md.University.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 5
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Mr.Digvijay Singh, Additional Government Counsel.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 6
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 7
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

ORDER

BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 8
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 9
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 10
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 11
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 12
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 13
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 14
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 15
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 16
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 17
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 18
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 19
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 20
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 21
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 22
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 23
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 24
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 25
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 26
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 27
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

No other candidate was also found to be eligible.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 28
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 29
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 30
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 31
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 32
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

By the said letter, the College was requested to make a fresh selection.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 33
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 34
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 35
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 36
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 37
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 38
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 39
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 40
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 41
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 42
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 43
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

He was also held to be entitled to pay and allowances as due to him.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 44
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 45
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 46
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 47
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 48
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 49
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 50
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 51
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 52
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 53
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

We have analyzed the pleadings available on record and the arguments advanced.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 54
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 55
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 56
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 57
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 58
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 59
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 60
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 61
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The College was thereby advised to make a fresh selection for the post.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 62
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 63
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 64
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 65
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

He was also communicated thereby that his services would stand terminated from 6.4.2002.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 66
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 67
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 68
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 69
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 70
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 71
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 72
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 73
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 74
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 75
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 76
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 77
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 78
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 79
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 80
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 81
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 82
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 83
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 84
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 85
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 86
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

In the result, the writ petitions are allowed.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 87
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 88
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

A copy of this order be placed in both the files.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 89
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

(Vijay Bishnoi)J.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1138686',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
			'authreffered' => null,
			'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Rajasthan Jodhpur',
			'court_type' => 'HC',
			'decidedon' => '2014-04-29',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => null,
			'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti',
	'args' => array(
		(int) 0 => '1138686',
		(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
	)
)
$title_for_layout = 'Shrijain Swetambar Terapanthi M H S Andors Vs Raj Non Govt Edu Insti Tri and ors - Citation 1138686 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1138686',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors',
		'authreffered' => null,
		'casename' => 'ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Rajasthan Jodhpur',
		'court_type' => 'HC',
		'decidedon' => '2014-04-29',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => null,
		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.</p><p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.</p><p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.</p><p> Mr.Sanjay Mathur for the respondent no.2.</p><p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.</p><p> Mr.Digvijay Singh, Additional Government Counsel.</p><p> </p>ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.</p><p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.</p><p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.</p><p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.</p><p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.</p><p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.</p><p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.</p><p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.</p><p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.</p><p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.</p><p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.</p><p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.</p><p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.</p><p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.</p><p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.</p><p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.</p><p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.</p><p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.</p><p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.</p><p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.</p><p> No other candidate was also found to be eligible.</p><p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.</p><p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.</p><p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.</p><p> By the said letter, the College was requested to make a fresh selection.</p><p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.</p><p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.</p><p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.</p><p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.</p><p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.</p><p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.</p><p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.</p><p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.</p><p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.</p><p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.</p><p> He was also held to be entitled to pay and allowances as due to him.</p><p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.</p><p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.</p><p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.</p><p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.</p><p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.</p><p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.</p><p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.</p><p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.</p><p> We have analyzed the pleadings available on record and the arguments advanced.</p><p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.</p><p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.</p><p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.</p><p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.</p><p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.</p><p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.</p><p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.</p><p> The College was thereby advised to make a fresh selection for the post.</p><p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.</p><p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.</p><p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.</p><p> He was also communicated thereby that his services would stand terminated from 6.4.2002.</p><p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.</p><p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.</p><p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.</p><p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.</p><p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.</p><p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.</p><p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.</p><p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.</p><p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.</p><p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.</p><p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.</p><p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.</p><p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.</p><p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.</p><p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.</p><p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.</p><p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.</p><p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.</p><p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.</p><p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.</p><p> In the result, the writ petitions are allowed.</p><p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.</p><p> A copy of this order be placed in both the files.</p><p> (Vijay Bishnoi)J.</p><p> (Amitava Roy)CJ Parmar',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Raj.Non-govt.Edu.insti.Tri.and ors',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$args = array(
	(int) 0 => '1138686',
	(int) 1 => 'shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
)
$url = 'https://sooperkanoon.com/case/amp/1138686/shrijain-swetambar-terapanthi-m-h-s-andors-vs-govt-insti'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.',
	(int) 1 => '<p> 1.D.B.Civil Writ Petition No.3610/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.2.D.B.Civil Writ Petition No.3611/2003 Shri Jain Swetambar Terapanthi V/s The Rajasthan Non- Manav Hitkari Sangh and ORS.Government Educational Institutions Tribunal & ORS.Date of Order::- 29.4.2014.',
	(int) 2 => '<p> PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.M.S.Singhvi, Senior Advocate with Mr.Amit Tatiya for the appellants.',
	(int) 3 => '<p> Mr.Sanjay Mathur for the respondent no.2.',
	(int) 4 => '<p> Mr.A.K.Rajvanshy for the respondent no.3-Md.University.',
	(int) 5 => '<p> Mr.Digvijay Singh, Additional Government Counsel.',
	(int) 6 => '<p> ',
	(int) 7 => 'ORDER<p> BY THE COURT (Per Hon'ble Amitava Roy,CJ.The proceedings in hand witness impugnment of the judgments and orders dated 26.3.2003 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short, hereinafter referred to as “the Tribunal”.) in appeals no.105/2002 and 289/1998 thereby interfering with the orders 2 dated 2/6.4.2002 and 15.7.1998 respectively terminating the services of the respondent no.2 herein with the appellant-College.',
	(int) 8 => '<p> Thereby in essence the learned Tribunal restored the respondent no.2 in service with the consequential benefits.',
	(int) 9 => '<p> We have heard Mr.M.S.Singhvi, learned Senior Advocate with Mr.Amit Tatiya for the appellants, Mr.Sanjay Mathur, learned counsel for the respondent no.2, Mr.A.K.Rajvanshy, learned counsel for the respondent no.3-Md.University and Mr.Digvijay Singh, learned Additional Government Counsel.',
	(int) 10 => '<p> The sequence of events encompassing the orders dated 15.7.1998 and 2/6.4.2002 being common reference thereto petition-wise is obviable for the sake of brevity.',
	(int) 11 => '<p> As pleaded, the appellant no.1-Shri Jain Swetambar Terapanthi Manav Hitkari Sangh is a society registered under the Rajasthan Societies Registration Act, 1958 and the appellant no.2-Shri Jain Terapanth College, Ranawas (for short, hereinafter referred to as “the College”.) is an institution established by it for imparting education at the under-graduate and post-graduate levels.',
	(int) 12 => '<p> The College is a non-government aided institution governed by the Rajasthan Non- Government Educational Institutions Act, 1989 (for short, hereinafter referred to as “the Act”.) and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 (for short, hereafter referred to as “the Rules”.) and receives aid to the extent of 90% of 3 its approved expenditure.',
	(int) 13 => '<p> The College is recognized by the University Grants Commission (for short, hereafter referred to as “the UGC”.) and affiliated to the Maharishi Dayanand Saraswati University, Ajmer (for short, hereinafter referred to as “the Md.University”.).According to the appellants, the respondent no.2 was appointed as Lecturer in Jeevan Vigyan and Jain Vidhya (for short, hereinafter referred to as “J.and JV”.) with the College with effect from 7.7.1995 on purely adhoc basis at a fixed pay of Rs.2200/- + 50% DA till a candidate on regular basis was selected.',
	(int) 14 => '<p> As the respondent no.2 did not possess the necessary qualification for regular appointment to the post, he was not accorded the pay scale of Rs.2200-4000 therefor and was also not granted the increments.',
	(int) 15 => '<p> The appellants have averred that they had started the couRs.in the subject of J.and J.in the year 1991 with temporary affiliation of the Md.University, whereafter permanent affiliation was granted to the said couRs.on a lapse of 6 yeaRs.The appellants have further averred that the College is required to follow the provisions of the Md.University Act, statutes, ordinances, rules, regulations and instructions inter-alia for appointment of teaching staff.',
	(int) 16 => '<p> According to the appellants, as per the letter dated 10.8.1996 issued by the Md.University prescribing the qualifications for appointment of teaching staff, a person to be appointed as Lecturer is required to possess good academic record with atleast 55% marks or equivalent grade in the Master's degree 4 in the relevant subject from an Indian University or an equivalent degree from a foreign University.',
	(int) 17 => '<p> In addition, the candidate should have cleared the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or should have submitted his/her Ph.D.thesis or completed his/her M.Phil degree by 31.12.1993.',
	(int) 18 => '<p> The appellant-College to secure a regular appointment to the post of Lecturer (J.and JV) issued an advertisement and in the interview that followed on 28.7.1997, three candidates including the respondent no.2 did appear.',
	(int) 19 => '<p> However, as none of the candidates was found to be possessing the requisite qualification for the post as they had not passed the eligibility test for Lecturer conducted by the UGC/CSIR or similar test accredited by the UGC or had not submitted their Ph.D.thesis or completed their M.Phil degree by the 31st December, 1993, the Selection Committee decided to re-advertise the post.',
	(int) 20 => '<p> In these circumstances, according to the appellants, the respondent no.2 was allowed to continue on the post on adhoc basis as before.',
	(int) 21 => '<p> In their second endeavour through advertisement dated 2.7.1998, only candidate, namely, Anekant Kumar Jain was found to be possessed of the requisite qualification and therefore, he was engaged pending final selection.',
	(int) 22 => '<p> As a consequence, the services of the respondent no.2 having been terminated by the order dated 15.7.1998, he filed an appeal before the learned Tribunal under section 19(2) of the Act 5 which was registered as appeal no.289/98.',
	(int) 23 => '<p> By the order dated 31.7.1998, the learned Tribunal directed the appellants not to appoint any person on the post involved.',
	(int) 24 => '<p> Eventually, however, as the candidate, who had been engaged pending final selection did abandon the post, the appellants restored the earlier arrangement whereunder the respondent no.2 started rendering his services again in the post.',
	(int) 25 => '<p> The appellants have averred that this arrangement had to be made to ensure that the students did not suffer.',
	(int) 26 => '<p> The appellant-College however again issued an advertisement for filling the post of Lecturer (J.and JV) on 4.8.1999 and though the respondent no.2 did again apply he was not found to be eligible.',
	(int) 27 => '<p> No other candidate was also found to be eligible.',
	(int) 28 => '<p> The Selection Committee however following the interview recommended the respondent no.2 for appointment to the post and accordingly, the same was forwarded to the Md.University for approval.',
	(int) 29 => '<p> Meanwhile, the State Government by its communication dated 28.2.2001 clarified that only those persons, who fulfilled the requisite qualifications prescribed by the UGC ought to be given appointment to the post of LectureRs.While the matter rested at that, the Md.University by its communication dated 15.12.2001 addressed to the Principal of the College intimated that the candidates who have obtained Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and 6 Jainology”.',
	(int) 30 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86(NET) dated 10.8.1999.',
	(int) 31 => '<p> This letter was in response to the request for approval of the recommendation for appointment of the respondent no.2 to the post of Lecturer (J.and JV) in the College.',
	(int) 32 => '<p> By the said letter, the College was requested to make a fresh selection.',
	(int) 33 => '<p> On receipt of this communication, the services of the respondent no.2 were terminated by the order dated 2/6.4.2002.',
	(int) 34 => '<p> Being aggrieved, he filed another appeal before the learned Tribunal which was registered as appeal no.105/2002.',
	(int) 35 => '<p> Finally, both the appeals above- mentioned were allowed by the learned Tribunal by separate orders dated 26.3.2003 which constitute the subject matter of impeachment in the present proceedings.',
	(int) 36 => '<p> In his reply, the respondent no.2 by placing reliance principally on the letters dated 16.2.1999 (Annex.R/2/2).27.5.1999 (Annex.R/2/3).3.7.1999 (Annex.R/2/4) and 10.8.1999 (Annex.R/2/6) asserted that he was a postgraduate in the subject of Science of Living from Jain Vishva Bhartiya Sansthan (deemed University) Ladnu and that in terms of the UGC guidelines he was exempted from appearing in NET/SLET for the purpose of appointment to the post of Lecturer (J.and JV) and thus, he was eligible to hold the same.',
	(int) 37 => '<p> While pleading that the Md.University vide its letter dated 10.8.1999 had made it merely optional for the candidates holding post-graduate degree in J.and J.to appear in 7 the UGC-NET in the subject of Prakrit and Jainology, the answering respondent did claim that meanwhile his services by the appellant- College as well as by the Md.University were being utilized as practical examiner and paper setter in the subject as well.',
	(int) 38 => '<p> The respondents no.4 and 5 i.e.State of Rajasthan and the Director, College Education, Government of Rajathan, Jaipur in their joint reply while affirming that the appointment of the respondent no.2 as Lecturer (J.and JV) with the College was on adhoc basis, averred that the State Government had not sanctioned the post and that the College was not entitled for grant-in-aid pertaining thereto as being beyond scheme of the approved expenditure as contemplated by the Act and the Rules.',
	(int) 39 => '<p> The answering-respondents reiterated that the respondent no.2 did not possess the requisite qualification to hold the post.',
	(int) 40 => '<p> That the Md.University did refuse to grant approval to the recommendation on the ground that he did not posses the requisite qualification for regular appointment, was reiterated.',
	(int) 41 => '<p> The learned Tribunal annulled the order dated 2/6.4.2002 on the following grounds: (1) The services of the respondent no.2 had been terminated due to the induction of a candidate construed to be eligible for the post though the order does not disclose his academic qualification, experience etc.(2) The services of the respondent no.2 have been 8 terminated in violation of Section 18 of the Act and Rule 39 (2) of the Rules.',
	(int) 42 => '<p> Consequently, the learned Tribunal directed reinstatement of the respondent no.2 by maintaining continuity in service.',
	(int) 43 => '<p> He was also held to be entitled to pay and allowances as due to him.',
	(int) 44 => '<p> The order dated 15.7.1998 was also interfered with being in contravention of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 45 => '<p> Mr.Singhvi in this factual backdrop has urged that the appellant-College being affiliated to the Md.University, it was incumbent on it to terminate the services of the respondent no.2 he having been adjudged to be ineligible for the post of Lecturer (J.and JV) as per the UGC guidelines.',
	(int) 46 => '<p> The learned Senior Counsel has insisted that not only the respondent no.2 at all relevant times was ineligible to hold the post of Lecturer (J.and JV).in absence of any challenge to the communication dated 15.12.2001 of the Md.University to this effect, the learned Tribunal ought not to have interfered with the order of termination of his services.',
	(int) 47 => '<p> Apart from contending that having regard to the nature of the order whereby termination of the services of the respondent no.2 simplicitor was effected and thus, Section 18 of the Act and Rule 39 of the Rules were inapplicable, Mr.Singhvi has maintained that the learned Tribunal had fallen in patent error in interfering with the order of termination of the services of the respondent no.2 on 9 the impression that it was as a consequence of appointment of another person in his place.',
	(int) 48 => '<p> It being evident from the order dated 2/6.4.2002 that a fresh interview for such appointment was contemplated, such a pre-supposition is wholly belied thereby and on that count as well, the impugned judgments and orders dated 26.3.2003 are unsustainable in law and on facts, he urged.',
	(int) 49 => '<p> According to the learned Senior Counsel, having regard to the nature of the order terminating the services of the respondent no.2, no appeal under section 19 of the Act before the learned Tribunal was maintainable and thus, the impugned judgments and orders rendered by it are non est in law.',
	(int) 50 => '<p> Without prejudice to this, Mr.Singhvi has argued as well that Section 18 so far as it relates to proviso (iii) is constitutionally invalid as the same has the potential of conferring uncanalized and unregulated power to the Director of Education to withhold or grant consent at his convenience in absence of any time limit prescribed therefor.',
	(int) 51 => '<p> To endORS.his arguments, Mr.Singhvi has placed reliance on the decisions of the Hon'ble Apex Court in The Principal and ORS.V/s The Presiding Officer and ORS.((1978) 1 SCC498 and of this Court in S.B.Civil Writ Petition No.223/89 Jawahar Vidhyapeeth, Kanore V/s The State of Rajasthan and ORS.(decided on 16.3.1998) since upheld by a coordinate Bench of this Court in D.B.Civil Special Appeal No.493/1998 (decided on 12.5.1998).10 Mr.Mathur, learned counsel for the respondent no.2 has argued that the determination made by the learned Tribunal is valid having been rendered on an exhaustive scrutiny of all relevant aspects factual and legal and thus, this Court in the exercise of the power of judicial review would not interfere therewith.',
	(int) 52 => '<p> Vis-a-vis the challenge to the proviso (iii) of Section 18 of the Act as laid, the learned counsel has drawn the attention of this Court to the decision of a Larger Bench of this Court in Central Academy Society V/s Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ORS.(2010(3) WLC (Raj.) 21).Mr.Rajvanshy, learned counsel for the respondent no.3-Md.University however reaffirmed that in terms of the UGC guidelines prevalent at the relevant time, the respondent no.2 was ineligible to hold the post of Lecturer (J.and JV) and thus, the order terminating his services is valid and ought not to have been interfered with by the learned Tribunal.',
	(int) 53 => '<p> We have analyzed the pleadings available on record and the arguments advanced.',
	(int) 54 => '<p> As the records reveal, the respondent no.2 was appointed as Lecturer with the appellant-College in J.and J.at a fixed pay of Rs.2200/- plus 50% DA on the basis of a decision taken to that effect by its managing committee.',
	(int) 55 => '<p> The appointment was with effect from 7.7.1995 and the letter in that regard inter-alia in 11 clear terms mentions that one month's notice on either side was required for leaving/terminating the job.',
	(int) 56 => '<p> It is not disputed that thereafter, on more than one occasion the appellant-College advertised the said post for appointment thereto of a candidate in terms of the UGC guidelines laying down the minimum qualifications required for such recruitment.',
	(int) 57 => '<p> Though in the interregnum for some time one Anekant Kumar Jain was appointed, consequent whereof the services of the respondent no.2 were terminated on 15.7.1998, he having been restored, that phase of the otherwise on-going march of events is not much of significance.',
	(int) 58 => '<p> To reiterate, thus, scrutiny of the judgment and order dated 26.3.2003 of the learned Tribunal pertaining to the challenge of the respondent no.2 to his termination order dated 15.7.1998 is considered inessential.',
	(int) 59 => '<p> Be that as it may, in response to the proposal of the appellant-College for inducting the respondent no.2 to the post involved, the respondent no.3-Md.University by its communication dated 15.12.2001 opined that the candidates who have obtained the Master's degree in J.and J.are required to appear in the UGC-NET in the subject of “Prakrit and Jainology”.',
	(int) 60 => '<p> for being eligible for the post of Lecturer as per UGC letter no.F-4-12/86 (NET) dated 10.8.1999.',
	(int) 61 => '<p> The College was thereby advised to make a fresh selection for the post.',
	(int) 62 => '<p> It is clear from the language of this communication dated 15.12.2001, apparently pertaining to the 12 request of the appellant-College for approval of its proposal for appointment of the respondent no.1 in the post of Lecturer (J.and JV).that the MDS-University not only disinclined to grant its approval but also conveyed that he was ineligible for the post in terms of the UGC letter dated 10.8.1999.',
	(int) 63 => '<p> It was pursuant to this letter of the Md.University that the appellant-College addressed its communication dated 2/6.4.2002 to the respondent no.2 intimating him that he was not eligible for the post and that, therefore, it (College) would have to hold a fresh interview for the post.',
	(int) 64 => '<p> Thereby, the respondent no.2 was forwarded a cheque of Rs.2904/- as his pay in lieu of one month's notice.',
	(int) 65 => '<p> He was also communicated thereby that his services would stand terminated from 6.4.2002.',
	(int) 66 => '<p> Though in his reply, the respondent no.2 has made an endeavour to contend that he being post-graduate in Science of Living, he is exempted from the NET examination and had relied upon for this purpose on the letters dated 16.2.1999 (Annnex.R/2/2).27.5.1999 (Annex.R/2/3) and 3.7.1999 (Annex.R/2/4).a bare perusal of the subsequent communication dated 10.8.1999 of the UGC, as referred to in the letter dated 15.12.2001 of the Md.University, reveals that even the candidates who have done post-graduation in Jivan Vigyan and Jain Vidya/Jainology were required to appear in the UGC-NET in the subject “Prakrit and Jainology”.The respondent no.2's plea that a 13 post-graduate in J.and J.was thus assuredly exempted from UGC- NET in the subject of Prakrit and Jainology does not appear to be sustainable.',
	(int) 67 => '<p> As a matter of fact, in couRs.of the arguments as well, this contention has not been raised on his behalf.',
	(int) 68 => '<p> The learned Tribunal, as the impugned judgment and order would disclose, interfered with the termination of the services of the respondent no.2 on the ground that he had been replaced by an eligible candidate, whose academic qualification, experience etc.had not been disclosed.',
	(int) 69 => '<p> According to the learned Tribunal, the impugned action was violative of Section 18 of the Act and Rule 39(2) of the Rules.',
	(int) 70 => '<p> At the fiRs.instance, a plain reading of the letter dated 2/6.4.2002 terminating the services of the respondent no.2 would reveal that a fresh interview for the post had been contemplated and that thus, the inference of the learned Tribunal that he had been replaced by some eligible candidate is not borne-out by the records.',
	(int) 71 => '<p> More importantly, in the attendant facts and circumstances, the termination of the services of the respondent no.1 can by no means be said to constitute his removal or dismissal or reduction in rank as envisaged in Section 18 of the Act and Rule 39 of the Rules.',
	(int) 72 => '<p> In that view of the matter, as the termination of his services does not come within the purview of these provisions, his appeal under section 19 to the learned Tribunal has been rightly contended by Mr.Singhvi to be not maintainable in law.',
	(int) 73 => '<p> The 14 language of Sections 18 and 19 of the Act and Rule 39 of the Rules being unequivocally clear, no other interpretation is possible.',
	(int) 74 => '<p> Though Rule 39(2) prescribes that an employee, other than the employee referred to in sub-rule (1).may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service, but subject to the procedure as laid down therein, as the provision explicitly pertains to the eventualities of removal or dismissal from service, such a consequence on “any other grounds”.',
	(int) 75 => '<p> apart from insubordination, inefficiency etc.would not ipsofacto draw the case within the ambit of Section 18 or Rule 39.',
	(int) 76 => '<p> A right of appeal being not a common law right but one created and conferred by a statute, in our unhesitant opinion, the appeals filed by the respondent no.2 under section 19 of the Act before the learned Tribunal in the teeth of the statutory scheme out-lined in the Act were not maintainable.',
	(int) 77 => '<p> In the Principal and ORS.V/s The Presiding Officer and ORS.(supra).their Lordships of the Apex Court were seized with a situation where the services of the second respondent therein who was ineligible had been terminated, whereupon being aggrieved he filed an appeal before the Tribunal under section 8(3) of the Delhi School Education Act, 1973, which was allowed.',
	(int) 78 => '<p> It was inter-alia pleaded before the Hon'ble Apex Court that as the order of 15 termination was not dismissal or removal or reduction in rank, the appeal was not maintainable.',
	(int) 79 => '<p> On a scrutiny of Section 8(3) of the said Act, their Lordships recorded that for the applicability thereof two conditions were to exist i.e.(1) that the employee should be an employee of a recognized private school; and (2) that he should be visited with either of the three major penalties of dismissal, removal or reduction in rank.',
	(int) 80 => '<p> As the contextual facts disclosed that the school was neither a recognized private school on the relevant date nor the impugned order was one of dismissal, removal or reduction in rank, but was an order simplicitor of termination of service, the appeal filed before the learned Tribunal was held to be manifestly incompetent, thus rendering its order bereft of jurisdiction.',
	(int) 81 => '<p> In view of the above pronounced judicial enunciation, we are of the firm opinion that the challenge to the maintainability of the appeal of the respondent no.2 before the learned Tribunal against the order of termination of his services on the ground of ineligibility has to be sustained.',
	(int) 82 => '<p> As in the present conspectus of facts, the termination of services of the respondent no.2 can by no means be construed to be one of dismissal or removal or reduction in rank, having regard to the clearly outlined jurisdictional contour of the learned Tribunal as enjoined by Section 19 of the Act, his appeal was clearly not maintainable in law.',
	(int) 83 => '<p> By the analogy of reasons, the respondent no.2's appeal before the learned Tribunal 16 against the termination order dated 15.7.1998 is held to be not maintainable in law.',
	(int) 84 => '<p> The impugned judgments and orders dated 26.3.2003 are thus axiomatically rendered non est.',
	(int) 85 => '<p> In this view of the matter, we do not consider it essential in the present case to examine the impeachment of the vires of Section 18 of the Act to the extent as adverted to hereinabove.',
	(int) 86 => '<p> In the result, the writ petitions are allowed.',
	(int) 87 => '<p> The impugned judgments and orders dated 26.3.2003 of the learned Tribunal are hereby set aside.',
	(int) 88 => '<p> A copy of this order be placed in both the files.',
	(int) 89 => '<p> (Vijay Bishnoi)J.',
	(int) 90 => '<p> (Amitava Roy)CJ Parmar'
)
$paragraphAfter = (int) 1
$cnt = (int) 91
$i = (int) 90
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

(Amitava Roy)CJ Parmar

Court	Rajasthan Jodhpur High Court
Decided On	Apr-29-2014
Appellant	ShrijaIn Swetambar Terapanthi M.H.S.Andors
Respondent	Raj.Non-govt.Edu.insti.Tri.and ors

ShrijaIn Swetambar Terapanthi M.H.S.Andors Vs. Raj.Non-govt.Edu.insti.Tri.and ors - Court Judgment